Winning the Argument gay marriage does not leads to polygamy-- Will gay marriage lead to legalized polygamy? - Washington Blade

Will gay marriage lead to legalized polygamy? - Washington Blade

Legal experts respond to arguments of conservative activists

JOEY DiGUGLIELMO
Friday, June 06, 2008



If two men or two women can marry in some parts of the country, could it, in time, lead to a repeal of U.S. polygamy laws?
Esther Rothblum, a lesbian professor of women’s studies at San Diego State University who published a three-year study on the effects of Vermont’s civil unions law, stresses that the California Supreme Court ruling has nothing to do with polygamy and said she doesn’t fear same-sex marriage leading to a repeal of polygamy laws.

“You hear people say that all the time,” she said. “‘Oh next they’ll rule that somebody can marry their dog,’ that kind of thing. But historically laws haven’t led to those kinds of things in other areas. For instance when women won the right to vote, it didn’t lead to children being able to vote, animals being able to vote. Nobody’s arguing for any of that. In a legal sense, I just don’t see that kind of thing happening.”

But there are thousands of polygamists in the U.S., as the removal of more than 400 children from the Fundamentalist Church of Jesus Christ of Latter-day Saints’ Yearning for Zion Ranch in Eldorado, Texas, illustrated. Could polygamy have a legal future in the U.S.?
The experts who spoke to the Blade said no.

“People bring that up and say then why can’t people marry their dog but I think that kind of argument says a lot about the individual bringing it up,” said Kimberly Richman, a sociology professor at the University of San Francisco who specializes in gay and lesbian parenting.

“This was the end of a decades-long struggle. I’m not sure polygamists have the political lobbying force to do that. I don’t see groups of polygamists gathering in New York and Washington and San Francisco. They’re mostly in Utah and don’t tend to have a lot of pull as a social movement. This wouldn’t have happened on its own.”

Chai Feldblum, a lesbian and professor of law at Georgetown University, doesn’t buy the “paving the way” argument.

“[The defendants in the California case] were coming into this arguing that marriage is still a relationship between two people,” she said. “I don’t see anything in this decision that would lend anything to [the polygamy] argument because it’s really like apples and oranges.”

First Amendment expert Jonathan Turley, who teaches at George Washington Law School, said any correlations between polygamy and same-sex marriage have been “overplayed.”

Turley, who’s straight, said a more apt comparison would be the 2003 overturning of Lawrence v. Texas, in which the U.S. Supreme Court repealed sodomy laws, because polygamy laws would have to be overturned before marriage rights could be granted.

The comparison makes some gay activists uncomfortable because there are aspects of the same-sex marriage debate that Turley said could have ramifications for polygamists.

“There’s something ironic here because you’d think there’d be a natural alliance between the groups and yet they don’t want to have anything to do with each other,” Turley said. “Every time I write an op-ed about polygamy, gay and lesbian activists I know always say, ‘You’re making this tough for us.’”

Turley said consenting adult polygamists who “do not believe in child brides” should be allowed to formalize their relationships, a view he admits is unpopular.

“I don’t like polygamy but that’s not what’s important here,” he said. “What it means for gays and lesbians is that eventually they’ll have to unite on a single, cohesive principle about this. There will have to be a new definition of marriage because it’s disingenuous to say that gays and lesbians should be included in marriage but then for them to exclude others.”

Is it unfair for a slim majority of judges to vote against the will of the people of California who, in 2000, made their opposition to same-sex marriage known by approving Proposition 22 by 61 percent? Shouldn’t the people have the say on something so significant?
No, experts the Blade talked to said.

“There’s a reason we have separation of powers,” Richman said. “It’s because you can’t always trust the majority to protect the minority’s rights. If we left it to the majority, no minorities would have rights. That’s why we have lawmaking at the court level. They know more.”

Richman points to the landmark 1954 de-segregation case Brown v. the Board of Education.

“Most people at the time were not in favor of desegregation” she said. “They felt it was against the will of the people. Of course now it’s held up as one of the greatest Supreme Court decisions of all time. They were breaking with an unjust precedent that said segregation is OK. It was breaking with an unjust, unconstitutional law that was popular.”

Feldblum agrees.

“The point is that sometimes a constitutional analysis will find that the will of the people is unconstitutional,” she said. “In this case, they found that [Proposition 22] violates their own constitution.”

Richman, who’s straight, said it’s also important to remember that the majority justices in this case “are not some lunatic fringe of left-wing activists.”

“[Chief Justice] Ronald George is a moderate Republican,” she said. “He’s very conservative in many ways. Almost everyone on the bench is Republican.”

Is same-sex marriage harmful to children? Opponents, such as Focus on the Family’s Jim Dobson, point to “more than 10,000 studies” that “have concluded that kids do best when they are raised by loving and committed mothers and fathers” in a presentation called “Eleven Arguments Against Same-Sex Marriage.”

Dobson’s claim is somewhere between misleading and factually incorrect according to Judith Stacey, a New York University professor whose research focuses on changes in family structure and gay and lesbian family issues.

Stacey, who’s straight, previously taught at the University of California and the University of Southern California and said the studies Dobson refers to didn’t look at same-sex parents but came to their conclusions after studying single-parent families, children born out of wedlock, etc.

Stacey, though, points to “a few dozen studies” that specifically explored how children fared with lesbian parents versus their counterparts raised by married, opposite-sex heterosexual couples. Stacey said there’s been “almost no research” done that explored the parenting skills of gay men.

While Stacey acknowledges “some debate” on the studies, one of which she co-authored that was published in 2001, she said there is “a great deal of consensus among researchers” that children raised by lesbians fare as well as their straight-parented counterparts.

“The one area where it seems there was some slight exception had to do with the area of stigma and teasing,” Stacey said. “But even there there’s some disagreement about whether they received more teasing because of that or if that just happened to be what they were teased about. I go a little further and say that gays probably make better parents on average because there’s a higher bar for them to cross to become parents in the first place. They have to want to be parents. It doesn’t happen by accident.”

But isn’t it common for any group that doesn’t like the findings of a study to attack its methodology? Will there ever be professional consensus on such controversial issues?

Stacey acknowledged that in her 2001 report.

“Because we personally oppose discrimination on the basis of sexual orientation or gender, we subject research claims by those sympathetic to our stance to a heightened degree of critical scrutiny and afford the fullest possible consideration to work by scholars opposed to parenting by lesbians and gay men,” Stacey and co-author Timothy Biblarz wrote.

The highly regarded American Sociological Review, the scholarly journal that published their report, is a peer-reviewed journal and is considered a standard in its field.

How are gays and lesbians being discriminated against when anyone in the U.S. who’s 18 or older can get married as long as it’s to a person of the opposite sex?

Richman said this argument “goes into the realm of absurdity.”

“It’s like they’re trying to invent a choice where none really exists,” she said. “It’s a false choice, a false sense of equality. Like Marie Antoinette and the paupers when she said, ‘Let them eat cake.’ It’s not within the realm of possibility.”

Feldblum said that as a lesbian, she finds the notion disrespectful.

“I mean in my case, I don’t see a whole lot of guys I want to get married to,” she said. “It’s very disingenuous for conservatives to say that to gay people just as it’s disingenuous for me to say that someone who has a different moral belief than me is a bigot. I think both sides need to take a more respectful, holistic manner and realize the government has to make a choice.”